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COA rejects biological father’s due process claim in TPR case

Sheboygan County DH&HS v. E.C., 2021AP1655, 4/20/22, District 2; (1-judge opinion, ineligible for publication); case activity

While “Nina” was married to “John,” she became pregnant with “Eric’s” baby. A court found the baby to be a “child in need of protective services” and gave the standard TPR warning to Nina, but not to Eric.  Afterward, Eric established that he was the baby’s father. When the court terminated his parental rights in this case, he argued that his exclusion from the earlier CHIPS proceeding violated his right to due process and provided “good cause” for failing to establish a substantial relationship with the baby. The court of appeals rejected both arguments.

According to the court of appeals:

¶20 As the United States Supreme Court and the Wisconsin Supreme Court have made clear, a biological link to a child does not, by itself, give rise to a constitutionally protected liberty interest in a putative father’s paternity. SeeLehr [v. Robertson, 463 U.S. 248, 261 (1983); W.W.W. v. M.C.S., 161 Wis. 2d 1015, 468 N.W.2d 719 (1991).] Rather, the liberty interest arises only if the putative father has established an actual relationship with the child and assumes parental responsibility for the child. W.W.W., 161 Wis. 2d at 1031-32. Minimal contact with a child is insufficient to establish a liberty interest in paternity. See id. at 1029.

The court of appeals reasoned that Eric was in the same boat as the putative father in Randy A.J. v. Norma I. J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, where a wife had an affair and became pregnant with another man’s baby. DNA tests showed a 99.99% probability that the putative father was indeed the baby’s biological father, so he initiated proceedings to establish his paternity. SCOW precluded him from doing so. It held that he had no constitutionally protected liberty interest in maintaining his parental status to the child because he had taken no affirmative steps to assume parental responsibilities. Opinion, ¶22.

Note that Randy A.J. was a paternity action, whereas this case is a TPR proceeding. Furthermore, Randy A.J. did not involve a claim that the putative father was denied notice of proceedings.

Following the reasoning of Randy A.J., the court of appeals held that Eric had not provided for his daughter’s financial and emotional needs and had not contacted her foster parents to see or communicate with her. Opinion, ¶23.

Randy countered that at the time of the CHIPS proceeding he had not yet overcome the presumption that John was the girl’s father. But the court of appeals said that the lack of a paternity determination did not prevent him from initiating communication with his daughter. Opinion, ¶24.

One does wonder how receptive the child’s foster parents would have been to Eric’s request to establish a relationship with her given that she was born while Nina was married to John.

But the court of appeals does not wonder. The law is black and white. At the time of the CHIPS proceeding, John was presumed to be the baby’s dad under §891.41(1)(a), so Eric was not entitled to notice of that proceeding. Opinion, ¶28.  Furthermore, the CHIPS disposition did not factor into the court’s decision to terminate Eric’s parental rights in this case.  Eric simply did not establish good cause for failing to establish a substantial relationship with his biological daughter  Opinion, ¶24.



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